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Husted v. Thomson

57 N.Y.S. 9 Court N.Y. App. Div. Decision date 1899-03-24 English

Delivered by *10 O’BRIEN, J.

Contents

Majority

p. 9
(38 App. Div. 315.)
HUSTED v. THOMSON et al.
(Supreme Court, Appellate Division, First Department.
March 24, 1899.)

Headnote

Costs—Extra Allowance.
Extra allowance can be granted only where a sum of money is sought to be recovered, and therefore is not proper in an action to obtain some sort of relief in respect to a paper in the form of a general release executed by plaintiff, including injunction against its use.
Appeal from special term, New York county.
Action by Gilbert M. Husted against David Thomson, trustee of estate of Benjamin Lord, deceased, and another. From an order granting defendant Thomson an extra allowance in addition to costs, plaintiff appeals.
Modified.
Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, O’BRIEN, and INGRAHAM, JJ.
A. Edward Woodruff, for appellant.
George Putnam Smith, for respondents.

In Hanover Eire Ins. Co. v. Germania Fire Ins. Co., 63 Hun, 275 , 18 N. Y. Supp. 50 (affirmed 138 N. Y. 252 , 33 N. E. 1065 ), it was said: “It has frequently been determined that, where no sum of money is claimed in the pleadings or allowed to the plaintiff, there is nothing upon which an extra allowance can be based, and the court has no power to grant it.” The statement as to the nature of this action in the affidavit of the defendant’s attorney is that it “was brought to obtain some sort of relief in respect to a paper in the form of a general release which had been executed by the plaintiff, including an injunction against its use.” Taking this statement as correct, and with the most favorable view of the nature of the action, it is clear that there was involved therein no proper basis for an allowance. No subject-matter of money value was involved, and therefore there was no basis upon which to fix an allowance.

We think the order appealed from should be modified by striking out the provision granting the extra allowance, with $10 costs and disbursements of this appeal to the appellant. All concur.

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